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To promote stable, constructive labor-management relations through the resolution and prevention of labor disputes in a manner that gives full effect to the collective-bargaining rights of employees, unions, and agencies.

This matter is before the Authority on a motion filed by the Agency
under section 2429.17 of the Authority's Rules and Regulations seeking
reconsideration of our order in 47 FLRA 1391 dismissing the Agency's
exceptions to an arbitration award as untimely filed. The Union filed an
opposition to the motion. For the following reasons, we conclude that the
Agency has failed to establish that extraordinary circumstances exist
warranting reconsideration of our order. Accordingly, we will deny the motion
for reconsideration.

II. The Authority's Order in 47 FLRA 1391

In 45 FLRA 1391, we determined that the Agency's exceptions to
the Arbitrator's award were untimely filed. We noted that, as the Arbitrator's
award was served on the parties by mail on February 12, 1993, any exception to
that award had to be postmarked by the U.S. Postal Service or delivered in
person to the Authority no later than March 22, 1993, in order to be
timely filed. Because the Agency' exceptions were mailed in an envelope without
a postmark and received by us on April 20, 1993, we presumed, in accordance
with section 2429.21(b) of the Authority's Rules and Regulations, that the
exceptions were filed on April 15, 1993. Accordingly, we dismissed the
exceptions as untimely filed. In so ruling, we rejected the Agency's claim
that, because the Arbitrator retained jurisdiction for 30 days after issuing
the award in order to resolve the Union's request for attorney fees, the award
was an interim award.

III. Positions of the Parties

The Agency contends that our order in 47 FLRA 1391 is "inconsistent
with relevant case law and is contrary to fundamental federal labor policies."
Motion at 1. The Agency contends that the February 12 award was not a final
award to which exceptions could be filed because the Arbitrator retained
jurisdiction to address the Union's request for attorney fees. The Agency notes
that section 2429.11 of the Authority's Rules and Regulations, which provides
that the Authority ordinarily will not consider interlocutory appeals, means
that "exceptions to an arbitration award will not be considered unless the
award constitutes a complete determination of all issues submitted to
arbitration." Id. In support, the Agency relies on American
Federation of Government Employees Local 12 and U.S. Department of Labor,
38 FLRA 1240 (1990) (Department of Labor) and American
Federation of Government Employees, General Committee and Department of Health
and Human Services, Social Security Administration, 32 FLRA 173 (1988)
(Social Security Administration). The Agency also relies on several
Federal court decisions in which arbitration awards were found to be interim
because issues before the arbitrator remained unresolved (1) as well as on 28 U.S.C. §
1291, which concerns judicial review of certain district court judgments.

The Union contends that the Authority properly dismissed the Agency's
exceptions.

IV. Analysis and Conclusions

Section 2429.17 of the Authority's Rules and Regulations permits a
party that can establish extraordinary circumstances to request reconsideration
of an Authority decision. We conclude that the Agency has not established such
extraordinary circumstances in this case.

The grievance involved in this case concerned the propriety of a
proposed 14-day suspension of an employee. The Arbitrator concluded that,
although a 14-day suspension was not warranted, an official reprimand was
justified. As his award, the Arbitrator ordered, among other things, the
withdrawal of the proposed 14-day suspension and the issuance of a letter of
reprimand in its place. The Arbitrator retained jurisdiction for 30 days in
order for the parties to address the Union's request for attorney fees.

A threshold requirement for entitlement to attorney fees under the Back
Pay Act is an award of backpay. SeeDepartment of Health and Human
Services, Public Health Service, Region IV, Atlanta, Georgia and National
Treasury Employees Union, Chapter 210, 34 FLRA 823, 829 (1990). In this
regard, "Congress intended to provide for recovery of attorney fees subsequent
to a successful grievance; that is, after an arbitrator has . . . awarded
backpay." Philadelphia Naval Shipyard and Philadelphia Metal Trades
Council, 32 FLRA 417, 420 (1988). Moreover, as "determinations as to
whether . . . backpay is a legally authorized remedy cannot be made until an
award becomes final and binding," parties are not required to request, and
arbitrators are not required to decide requests for, attorney fees "before the
award becomes final and binding." Id. An award becomes final and binding
under section 7122 of the Statute when (1) the period for filing exceptions
expires, (2) the Authority issues a decision resolving exceptions, or (3)
exceptions are withdrawn. National Association of Government Employees,
Local R4-106 and Department of the Air Force, Langley Air Force Base,
Virginia, 32 FLRA 1159, 1164 (1988).

Consistent with the Authority's holding that arbitrators are not
required to decide requests for attorney fees before awards of backpay become
final and binding, we conclude that an arbitrator's retention of jurisdiction
solely to decide requests for attorney fees does not automatically render
interim an award on the merits of an underlying grievance.(2) Accordingly, it is necessary to
determine whether the February 12 award is otherwise interim.(3)

In this case, the Arbitrator did not label his February 12, 1993, award
as an interim award and nothing in the award otherwise indicates that the
Arbitrator intended it to be interim. Moreover, the Arbitrator did not retain
jurisdiction to address any unresolved issue concerning the merits of the
grievance or the proposed remedy and the Agency makes no claim that the
Arbitrator failed to address any outstanding issue of liability or relief.
Consequently, we conclude that the award was not an interim award and, to be
timely, any exceptions to the award had to have been filed within the 30-day
period after service of the award on the parties.

In this regard, we find that the Agency's reliance on Department of
Labor and Social Security Administration is misplaced. In
Department of Labor, the arbitrator issued an award in which he
concluded that a grievant should have been given an official reprimand instead
of a suspension but he retained jurisdiction to address the grievant's request
for backpay. As the arbitrator postponed a determination of an essential issue
in the case--backpay--the award was not reviewable under section 7122 of the
Statute. In Social Security Administration, the union sought to file an
interlocutory appeal from an arbitrator's decision to deny the union's request
to stay the arbitration hearing. Clearly, the determination of the arbitrator
was preliminary to any determination on the merits of the grievance before him.
Similarly, the Agency's reliance on Wells Exterior Trim, Norfolk
& Western Ky. Co., Mariform Shipping and Evans Mfg. Co.
is misplaced. In each of these cases, the underlying arbitration awards were
found interim because issues as to liability or remedy were unresolved.
Finally, we find that 28 U.S.C. § 1291, which concerns the
jurisdiction of Federal courts of appeals, is irrelevant to the question before
us.

Based on the foregoing, we conclude that the Arbitrator's February 12,
1993, award was not an interim award. Consequently, any exceptions to that
award had to be either postmarked by the U.S. Postal Service or delivered in
person to the Authority no later than March 22, 1993, in order to be
timely filed. We further conclude that the Agency has not established that
extraordinary circumstances exit warranting reconsideration of our order in 47
FLRA 1391 dismissing the Agency's exceptions, filed on April 15, 1993, as
untimely filed. Accordingly, we will deny the Agency's motion for
reconsideration.

VI. Order

The Agency's motion for reconsideration of our order in 47 FLRA 1391 is
denied.

2. We note, however, that nothing in
law or regulation would preclude an arbitrator from resolving an attorney fee
request as a part of an underlying award of backpay. In such circumstances, the
Authority will resolve any exceptions to the underlying award before addressing
attorney fees.

3. We note that an award of attorney
fees is not possible in this case because the Arbitrator did not award backpay.
SeeAmerican Federation of Government Employees, Local 216, National
Council of EEOC Locals and Equal Employment Opportunity Commission, 42 FLRA
319 (1991).